Sexual violence against women and girls both inside and outside conflict has a long history. Mass rape of women and girls was documented during World War II, as well as in more recent conflicts in the former Yugoslavia, Rwanda, Sierra Leone, and the Democratic Republic of Congo.250 Sexual violence has often in the past been considered as an inevitable by-product of armed conflict and has been mischaracterized by military and political leaders as a private crime or the unfortunate behavior of renegade soldiers. Rape is increasingly recognized, however, as a weapon of war, meaning that it is not a private or incidental crime. Rape as a weapon of war serves a strategic function and acts as an integral tool for achieving military and political objectives, not merely an act of violence that targets sexuality. It functions to subjugate and humiliate both the women and men within the targeted community. Furthermore, rape is generally not committed in isolation and victims are often subjected to multiple human rights abuses, which serve to further traumatize them. In conflicts in which civilians are the principal targets, sexual violence has become an even more deliberate and insidious weapon of war.
International law has prohibited rape and other forms of sexual violence against women during armed conflict for over a century.251 International humanitarian law, also known as the laws of war, sets out protections for civilians, prisoners of war, and other non-combatants during international and internal armed conflicts.252 Depending on the broader context within which the crimes are committed, perpetrators can be held accountable for rape and other forms of sexual violence as war crimes, crimes against humanity, and acts of genocide.253 The four Geneva Conventions and their two Additional Protocols implicitly and explicitly condemn rape as well as other forms of sexual violence as serious violations of humanitarian law in both international and internal conflicts. In international armed conflicts, such crimes are grave breaches of the Geneva Conventions and are considered war crimes. Violations involving direct attacks on civilians during internal armed conflicts are increasingly recognized as war crimes.
Common Article 3 to the Geneva Conventions applies to all parties in an internal armed conflict, including armed opposition groups. Through its prohibition of outrages upon personal dignity, in particular humiliating and degrading treatment, Common Article 3 implicitly condemns sexual violence. The Fourth Geneva Convention on the protection of civilians in international armed conflicts provides a basis for defining the protections provided under Common Article 3. Article 27 on the treatment of protected persons states that women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault.254 Article 147 specifies that torture or inhuman treatment and willfully causing great suffering or serious injury to body or health are grave breaches of the conventions.255 According to the International Committee of the Red Cross (ICRC), rape and other forms of sexual violence are considered to be grave breaches. Even a single act of sexual violence can constitute a war crime.256 Article 4 of Protocol II, which governs internal armed conflicts and applied to the conflict in Côte dIvoire, expressly forbids violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment, such as torture, mutilation or any form of corporal punishment and outrages upon personal dignity, in particular humiliating and degrading treatment, rape and enforced prostitution and any form of indecent assault as well as slavery and the slave trade in all their forms.257
Unlike war crimes, crimes against humanity may be committed in times of peace or in periods of unrest that do not rise to the level of an armed conflict. The definition of and prohibition on crimes against humanity has been incorporated into a number of international treaties and statutes of international criminal tribunals, including the Rome Statute of the ICC.258 There is no single international treaty that provides an authoritative definition of crimes against humanity, but such crimes are generally considered to be serious and inhumane acts committed as part of a widespread attack against the civilian population, during peacetime or war. The statutes of both the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) make explicit mention of rape, when committed as part of a widespread attack against the civilian population, as a crime against humanity.259
Both tribunals have played a critical role in setting precedents in the prosecution of conflict-related sexual violence, including articulating definitions and elements of many gender-related crimes.260 The statute of the ICC also explicitly identifies the acts of rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity as acts that can be crimes against humanity.261 Crimes against humanity, as serious international crimes, may also be subject to universal jurisdiction, meaning that national courts can be given jurisdiction to try a person suspected of a crime against humanity even if neither the suspect nor the victim are nationals of the country where the court is located and the crime took place outside that country. Acts of sexual violence committed as part of widespread attacks against civilians in Côte dIvoire can be classified as crimes against humanity and prosecuted as such.
International human rights instruments provide safeguards for women and girls at all times, including during armed conflict. These include protection from rape and sexual assault as forms of torture and other prohibited ill-treatment, slavery, forced prostitution, and discrimination based on sex. Armed opposition groups, particularly those in control of territory, have increasingly been under obligation to respect international human rights standards.262
Côte dIvoire is a party to the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the regional African [Banjul] Charter on Human and Peoples Rights (African Charter), which all prohibit torture and other cruel, inhuman, or degrading treatment by officials or persons acting in an official capacity.263 The Convention on the Rights of the Child (CRC) provides for the right to freedom from torture, sexual exploitation, and abuse as well as liberty and security of person.264 The United Nations Special Rapporteur on torture has recognized that rape can constitute torture,265 as have the ICTY266 and ICTR.267
Under the ICCPR, the African Charter and CEDAW, sexual slavery and forced prostitution in times of armed conflict constitute a basic violation of the right to liberty and security of person.268 Furthermore, slavery is a jus cogens norm from which no derogation is permitted and is prohibited under Article 8 of the ICCPR (which also prohibits forced labor), as well as the 1926 Slavery Convention.269
Sexual violence generally violates womens rights to be free from discrimination based on sex as provided for under the ICCPR.270 Under Article 1 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),271 the definition of discrimination is considered to include gender-based violence precisely because gender-based violence has the effect or purpose of impairing or nullifying the enjoyment by women of human rights on a basis of equality with men.272 The CEDAW Committee enumerated a wide range of obligations for states related to ending sexual violence, including ensuring appropriate treatment for victims in the justice system, counseling, support services, medical treatment, and psychological assistance.273 In a 1993 resolution, the UN General Assembly declared that prohibiting gender discrimination includes eliminating gender-based violence, and that states should pursue by all appropriate means and without delay a policy of eliminating violence against women.274 The Convention on the Rights of the Child (CRC) also provides for freedom from discrimination on the basis of gender (Article 2). The African Charter on Human and Peoples Rights, guarantees the [e]limination of every discrimination against women and protection of the rights of the woman and the child275 as well as the right to integrity of ones person, and the right to be free of [a]ll forms of exploitation and degradation particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment.276 In February 2004, Côte dIvoire signed the African Union Protocol to the African Charter on Human and Peoples Rights on the Right of Women in Africa, which came into force in November 2005; of these, Article 11 on armed conflict and Article 14 regarding illegal abortion are particularly relevant to this report.277
Individual acts of rape or other sexual assault can be prosecuted as criminal acts. However an individual case of serious sexual violence can also be prosecuted as a crime against humanity if the crime was committed as part of a widespread or systematic attack against the civilian population.278 Each enumerated type of act, such as murder, torture, or rape, does not need to be committed on a widespread or systematic basisit is the attack that must be widespread or systematic.
Individual criminal responsibility for a crime against humanity, or for a serious violation of human rights or international humanitarian law can be established when an accused is proved to have either planned, instigated, ordered, committed or otherwise aided or abetted in the commission or the crime.
Superior officers may also be liable for crimes committed by their subordinates on the basis of command responsibility. 279 Although the concept of command responsibility originated in military law, it now embraces the responsibility of civil authorities for the abuses committed by those persons under their effective authority. Both state and non-state actors (such as commanders of armed rebel groups) can be held accountable on the basis of command responsibility for crimes against humanity.280 Under the doctrine of command responsibility, commanders, or other superiors may be culpable for failing to prevent or punish crimes committed by their subordinates. A superior is responsible for the crimes of his or her subordinates when the superior knew or had reason to know that the criminal acts were about to be or had been committed, and the superior failed to take necessary and reasonable measures to prevent the commission of the offense and/or punish the perpetrators.281 The superior must either have actual knowledge of the criminal acts, or have information available to him or her that would put him or her on notice of the facts.282 However, it should be noted that the superior is under no duty to acquire such knowledge, and neglect to do so is not a basis for liability,283 although he or she cannot willfully ignore information available to him or her.284 The duty to prevent and or punish arises as soon as the superior acquires the knowledge that his or her subordinates are about to commit crimes, or have committed crimes.
A commander will therefore be found guilty of rape if he or she stood by while the subordinate committed rape. In Côte dIvoire, if individual commanders and civilian officials had reason to know that subordinates committed rape, and failed to use all necessary and reasonable measures under their command to prevent and punish this abuse, they may also be found guilty of rape.285
250 See, for example, Human Rights Watch, Bosnia and Herzegovina A Closed, Dark Place: Past and Present Human Rights Abuses in Foca, vol. 10, no. 6 (D), July 1998, http://www.hrw.org/reports98/foca/; Human Rights Watch and Fédération Internationale des Ligues des Droits de l'Homme, Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath, September 1996, http://www.hrw.org/reports/1996/Rwanda.htm; and Human Rights Watch, DRC The War Within the War: Sexual Violence against Women and Girls in Eastern Congo.
251 Examples of evolving laws prohibiting war-related rape include Italian lawyer Lucas de Pennas advocating in the thirteenth century for the punishment of wartime rape just as severely as rape committed in peacetime, and Hugo Grotius stating in the sixteenth century that sexual violence committed in wartime was a punishable crime. Articles 44 and 47 of the 1863 Lieber Code, which served as the basis for subsequent war codes, also lists rape by a belligerent as a war crime punishable by death. See Instructions for the Government of Armies of the United States in the Field (Lieber Code of 1863), April 24, 1863, http://www.icrc.org/ihl.nsf/73cb71d18dc4372741256739003e6372/a25aa5871a04919bc12563cd002d65c5?OpenDocument (accessed June 28, 2007). Article 4 of the Annex to the 1907 Hague Convention provides a general prohibition of torture and abuses against combatants and non-combatants. Article 46 of the same Annex prescribes that [f]amily honour and rights must be respected, which can be interpreted to cover rape. SeeConvention Respecting the Laws and Customs of War on Land, with annexed Regulations (Hague Convention IV) of October 18, 1907, 36 Stat. 2277, T.S. No. 539, entered into force January 26, 1910, http://www.yale.edu/lawweb/avalon/lawofwar/hague04.htm (accessed June 28, 2007), arts. 4 and 46. See Kelly D. Askin and Dorean M. Koenig, eds., Women and International Human Rights Law (Ardsley, NY: Transnational Publishers, Inc., 1999), Volume 1, p. 50.
252 See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), adopted August 12, 1949, 75 U.N.T.S. 31, entered into force October 21, 1950; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), adopted August 12, 1949, 75 U.N.T.S. 85, entered into force October 21, 1950; Geneva Convention relative to the Treatment of Prisoners of War (Third Geneva Convention), adopted August 12, 1949, 75 U.N.T.S. 135, entered into force October 21, 1950; Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), adopted August 12, 1949, 75 U.N.T.S. 287, entered into force October 21, 1950; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted June 8, 1977, 1125 U.N.T.S. 3, entered into force December 7, 1978; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 U.N.T.S. 609, entered into force December 7, 1978. Other sources of international humanitarian law are the 1907 Hague Convention and Regulations, decisions of international tribunals and customary law.
253 Rape and other forms of sexual violence can be defined as constituent elements of genocide. Genocide is defined under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide as acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group. Genocide has attained jus cogens status (a norm that preempts other norms) and is prohibited both in its own right and as a crime against humanity. Convention on the Prevention and Punishment of the Crime of Genocide, approved December 9, 1948, entered into force January 12, 1951, http://www.unhchr.ch/html/menu3/b/p_genoci.htm (accessed June 28, 2007).
254 Fourth Geneva Convention, art. 27 (2). Article 76 of Protocol I extends this protection of protected persons to all women. Protocol I, art. 76.
255 Fourth Geneva Convention, art. 147.
256 Theodor Meron, Rape as a Crime Under International Humanitarian Law, American Journal of International Law (Washington D.C.: American Society of International Law, 1993), vol. 87, p. 426, citing the International Committee of the Red Cross, Aide Mémoire, December 3, 1992.
257 Protocol II, art. 4 (2) (a), (e), and (f). Côte dIvoire ratified Protocol II on September 20, 1989.
258 Rome Statute of the International Criminal Court (Rome Statute), A/CONF.183/9, July 17, 1998, entered into force July 1, 2002.
259 Article 5 of the Statute of the Statute of the International Criminal Tribunal for the former Yugoslavia names rape as a crime against humanity.See Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY Statute), S.C. Res. 827, U.N. Doc. S/RES/827 (1993), as amended, http://www.un.org/icty/legaldoc-e/index.htm. Article 3 of the Statute of the International Criminal Tribunal for Rwanda names rape as a crime against humanity. See Statute of the International Criminal Tribunal for Rwanda (ICTR Statute), S.C. Res. 955, U.N. Doc. S/RES/955 (1994), as amended, http://188.8.131.52/ENGLISH/basicdocs/statute.html.
260 Prosecutor v. Jean-Paul Akayesu, ICTR, Case No. ICTR-96-4-T, Judgment, September 2, 1998 (the Akayesu Trial Chamber Judgment); Prosecutor v. Tadic, ICTY, Case No. IT-94-1, November 11, 1999; Prosecutor v. Delalic et al., ICTY, Case No. IT-96-21-A, November 16, 1998; Prosecutor v. Anto Furundija, ICTY, Case No. IT-95-17/1-T, Judgment, December 10, 1998; Prosecutor v. Blaskic, ICTY, Case No. IT-95-14, Judgment, March 3, 2000; Prosecutor v. Kvocka et al., ICTY, Case No. IT-98-30-T, Judgment, November 2, 2001; Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Foca case), ICTY, Case No. IT-96-23 and IT-96-23/1, Judgment (Appeals Chamber), June 12, 2002. In general, however, both the ICTY and ICTR have had an inconsistent record on investigating and prosecuting crimes of sexual violence. The ICTR continues to lack a comprehensive approach to the inclusion of sexual violence charges and has failed to include these charges or seek amendments in the original indictments where the Office of the Prosecutor has witness testimony or evidence of sexual violence. Human Rights Watch interview with source from the ICTR (name withheld), Freetown, November 8, 2002.
261 Article 7 (1) (g) of the Rome Statute of the ICC enumerates crimes against humanity as any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity. Rome Statute, art. 7.
262 Nigel S. Rodley, Can Armed Opposition Groups Violate Human Rights? Human Rights in the 21st Century: A Global Challenge, P. Mahoney and K. Mahoney, eds., (Dordrecht: Martinus Nijhoff, 1993), pp. 297-318; International Council on Human Rights Policy, Hard Cases: Bringing Human Rights Violators to Justice AbroadA Guide to Universal Jurisdiction, (Geneva: International Council on Human Rights Policy, 1999), p. 6.
263 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, Côte dIvoire acceded to the ICCPR on March 26, 1992. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, ratified by Côte dIvoire on December 18, 1995. African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force October 21, 1986, ratified by Côte dIvoire on January 6, 1992.
264 Article 34 of the Convention on the Rights of the Child protects the child from sexual exploitation and sexual abuse. Article 37 provides for the freedom from torture or other cruel, inhuman or degrading treatment or punishment as well as liberty and security of person. Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990, ratified by Côte dIvoire February 4, 1991, arts. 34 and 37.
265 UN Commission on Human Rights, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Nigel Rodley, E/CN.4/1995/34, January 12, 1995, para. 19.
266 Prosecutor v. Anto Furundija, ICTY, Case No. IT-95-17/1-T, Judgment, December 10, 1998, para. 171.
267 Prosecutor v. Jean-Paul Akayesu, ICTR, Case No. ICTR-96-4-T, Judgment, September 2, 1998 (the Akayesu Trial Chamber Judgment), para. 687: Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when it is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
268 Article 9 of the ICCPR provides for the freedom from arbitrary arrest, detention or exile, whilst Article 23 prohibits forced marriage. ICCPR, arts. 9 and 23. Under Article 6 of CEDAW, states are required to take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981, ratified by Côte d'Ivoire on December 20, 1995, art. 6. Article 5 of the African Charter prohibits all forms of exploitation and degradation of man particularly slavery, slave trade African [Banjul] Charter on Human and Peoples' Rights, art. 5.
269 United Nations Slavery Convention, entered into force March 9, 1927, http://www.unhchr.ch/html/menu3/b/f2sc.htm [accessed June 28, 2007]. See also United Nations Commission on Human Rights, Report of the Special Rapporteur on Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict, Ms. Gay J. McDougall, E/CN.4/Sub. 2/1998/13, June 22, 1998, http://www.hri.ca/forthereCord1998/documentation/commission/e-cn4-sub2-1998-13.htm (accessed June 28, 2007).
270 SeeICCPR, arts. 2 (1) and 26.
271 CEDAW, art. 1. Côte d'Ivoire also adopted Resolution 48/104 of the General Assembly of the United Nations against violence against women. United Nations General Assembly, Declaration on the Elimination of Violence against Women, A/RES/48/104, December 20, 1993 (issued on February 23, 1994).
272 Women, Law and Development International, Gender Violence: The Hidden War Crimes (Washington D.C.: Women, Law and Development International, 1998), p. 37.
273 Committee on the Elimination of All Forms of Discrimination against Women, Violence against Women, General Recommendation no. 19 (eleventh session, 1992), CEDAW/C/1992/L.1/Add.15.
274 UN General Assembly, Declaration on the Elimination of Violence against Women, art. 4.
275 African [Banjul] Charter on Human and Peoples Rights, art. 3.
276 African [Banjul] Charter on Human and Peoples Rights, arts. 4 and 5.
277 Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, September 13, 2000, CAB/LEG/66.6, entered into force November 25, 2005.
278 It is sufficient to show that the act took place in the context of an accumulation of acts of violence which, individually, may vary greatly in nature and gravity. Prosecutor v. Dragoljub Kunarac et al., ICTY, Case No. IT-96-23-T & IT-96-23/1/T, Judgment (Trial Chamber), 22 February 2001, para. 419.
279 Command responsibility is an established principle of customary international law. See Prosecutor v. Delalic et al. (Celebici Case), ICTY, Case No. IT-96-21-A, Judgment (Appeals Chamber), February 20, 2001, para. 195. Command responsibility has been incorporated into the statutes of international criminal courts, including the ad hoc tribunals for the former Yugoslavia and Rwanda, the Special Court for Sierra Leone, and the Rome Statute of the ICC. See Rome Statute of the International Criminal Court, art. 28 (Responsibility of Commanders and Other Superiors).
280 Prosecutor v. Hadzihasanovic (Central Bosnia), ICTY, Case No. IT-01-47-AR72, July 16, 2003, para. 2931.
281 Prosecutor v. Kordic and Cerkez, ICTY, Case No. IT-95-14/2, Judgment (Appeals Chamber), December 17, 2004, para. 839.
282 Prosecutor v. Blaskic, ICTY, Case No. IT-95-14-A, Judgment (Appeals Chamber), July 29, 2004, paras. 56-57, 62.
283 Prosecutor v. Delalic et al. (Celebici Case), ICTY, Case No. IT-96-21-A, Judgment (Appeals Chamber), February 20, 2001, para. 226.
284 Prosecutor v. Blaskic, ICTY, Case No. IT-95-14-A, Judgment (Appeals Chamber), July 29, 2004, para. 406.
285 Prosecutor v. Halilovic, ICTY, Case No. IT-01-48-T, (Trials Chamber), November 16, 2005, para. 73.